For many decades prior to 1993, federal and state courts assessing the reliability and admissibility of expert testimony were guided primarily by Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923), which held that such testimony must be based on principles and methods generally accepted in the scientific community. In 1993, however, the U.S. Supreme Court issued Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), which adopted a more flexible standard giving trial judges greater leeway to accept or reject expert testimony based on a number of factors. The factors (of which general acceptance is only one) are not mandatory and may be accorded varying degrees of weight on a case by case basis. Daubert thus established a new federal standard that was, in the years following the decision, adopted by the majority of states as well. That majority did not, however, include Florida.

After the Florida Supreme Court issued post-Daubert decisions reaffirming the state’s adherence to Frye, the Florida Legislature in 2013 amended the Florida Evidence Code to incorporate the Daubert standard. In 2017, the Florida Supreme Court declined to adopt the Daubert amendment to the extent it was procedural in nature, stating, among other things, that the amendment raised “grave constitutional concerns” with respect to civil litigants’ right to a jury trial and right of access to the courts. Although the court did not then rule directly on the constitutionality of the amendment, it has now done so in DeLisle v. Crane Co., No. SC16-2182 (Fla., Oct. 15, 2018).

In a 4-3 majority opinion authored by Justice Peggy Quince, the DeLisle court deemed the Daubert amendment unconstitutional because the amendment (a) is procedural rather than substantive in nature, thus making its subject matter the province of the judicial rather than the legislative branch of the state’s government, and (b) conflicts with Florida Supreme Court precedent. With respect to the relative merits of the Frye and Daubert standards, Justice Quince expressed the court’s preference for Frye’s reliance on the collective knowledge of the scientific community, as opposed to what she described as the “scientific savvy of trial judges.” In a footnote, Justice Quince also expressed concern that the Daubert standard, if adopted in Florida, might impair public access to the courts (the right to which is guaranteed by the Florida Constitution) by increasing the expense of civil proceedings.

The implications of Daubert for the right of judicial access were discussed in detail in a concurring opinion by Justice Barbara Pariente, who asserted that corporate defendants “often exploit the requirements of Daubert as a sword against plaintiffs’ attorneys.” Because the Daubert test is broader than the Frye standard, she explained, “more litigants are exposed to the risk of exclusion of their experts’ testimony under Daubert.” Justice Pariente further noted that due to the multi-factorial nature of the Daubert standard, hearings to determine admissibility under that standard can be lengthy and costly, sometimes prohibitively so for litigants lacking financial resources. She went on to cite examples of law firms declining to take on meritorious cases due to the potential costs of anticipated Daubert challenges to the expert testimony that would be needed to establish liability.

Justice Charles Canady’s dissenting opinion did not discuss the merits of the competing standards, but was instead confined to disputing the court’s jurisdiction to decide the issue. Notably, a more vigorous defense of the Daubert standard previously was offered by Justice Ricky Polston, dissenting from the supreme court’s 2017 decision not to adopt the Daubert amendment. Dismissing the “grave constitutional concerns” cited by the majority in that decision, and noting the number of states that have adopted the Daubert test, Justice Polston asked rhetorically: “Has the entire federal court system for the last 23 years as well as 36 states denied parties’ rights to a jury trial and access to courts?” This query was echoed in pro-Daubertamicus briefs in the DeLisle case, but as seen above, it failed to carry the day.

While reasonable minds may differ concerning the best way to assess the reliability of expert testimony, all Florida litigants and counsel will benefit from the certainty this new decision provides in this vitally important aspect of civil litigation.